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https://archive.org/details/sevenlampsofadvoOOparr
THE SEVEN LAMPS
OF ADVOCACY
WHAT
THE
JUDGE THOUGHT
By His Honour Judge Edward
Parry. DemySvo. Cloth. 21s.net
(Third Impression)
T. FISHER UNWIN, Ltd., LONDON
THE
SEVEN
LAMPS
OF
ADVOCACY
His
Honour
ABBOTT
T.
EDWARD
PARRY
FISHER
LONDON:
Judge
^
UNWIN
ADELPHI
By
LTD
TERRACE
0
First published in 1923
{All rights reserved)
TO
THE
NORTHERN
WHERE
THESE
CIRCUIT
I LEARNED
THINGS
I
CONTENTS
I. The Lamp of Honesty
.
.
PAQB
11
II. The Lamp of Courage
.
.
23
III. The Lamp of Industry
.
.
37
IV. The Lamp of Wit
...
49
V. The Lamp of Eloquence
.
.
61
VI. The Lamp of Judgment
.
.
75
VII. The Lamp of Fellowship
.
.
93
I
THE LAMP
OF HONESTY
I
THE
LAMP
OF
HONESTY
The great advocate is like the great actor :
he fills the stage for his span of life, succeeds, gains our applause, makes his last
bow, and the curtain falls. Nothing is so
elusive as the art of acting, unless indeed
it be the sister art of advocacy. You
cannot say that the methods of Garrick,
Kean or Irving, Erskine, Hawkins or
Russell, were the right methods or the
only methods, or even that they were the
best methods of practising their several
arts ; you can only say that they succeeded
in their day, and that their contemporaries
acclaimed them as masters.
Inasmuch as their methods were often
new and startling to their own generation,
the young student of acting or advocacy
is eager to believe that there are no
methods and no technique to learn, and
no school in which to graduate. Youth
is at all times prone to act on the principle
that there are no principles, that there is
no one from whom it can learn, and nothing
11
12
SEVEN
LAMPS
OF
ADVOCACY
to teach. Any one, it seems, can don a
wig and gown, and thereby become an
advocate. Yet there are principles of
advocacy ; and if a few generations were
to forget to practise these, it would indeed
be a lost art. The student of advocacy
can draw inspiration and hope from the
stored-up experience of his elders. He can
trace in the plans and life-charts of the
ancients the paths along which they strode,
journeying towards Eldorado. True,
these figures of forgotten advocates are
dim and obscure — only to be painfully
seen through the dusty gauzes of forgotten
years, pictured for us in drowsy voluminous
memoirs, or baldly reported in mouldering
law reports ; but if we search these
records diligently we gradually discern
a race of worthy men — see them haunting
the old libraries, pacing the ancient halls
with their clients, proud of the traditions
of their great profession — advocates —
advocates all.
It is in an endeavour to recapture something of the lives of these great ones, and
the principles upon which they built their
success, that I have struggled through
forbidding masses of decaying biography
in hopes to catch a faint whisper here and
there of the triumphant works and days
of my professional forbears.
THE
LAMP
OF
HONESTY
13
For a race of moderns, that, maybe,
care for none of these things, I have
lighted again the old lamps which burned
so brightly in the days that are gone,
which I myself have seen lighting the
darkness of our courts, and guiding the
footsteps of the judges in the paths of
justice and truth. For without a free
and honourable race of advocates the
world will hear little of the message of
justice. Advocacy is the outward and
visible appeal for the spiritual gift of
justice. The advocate is the priest in
the temple of justice, trained in the
mysteries of the creed, active in its exercises. For this reason Wyclif in his translation of I John ii. 1 sanctifies the word
in the text : ' 4 We haue auoket anentis the
fadir, Jhesu Crist just." Modern versions
retain " advocate," but unhappily substitute righteous
"
" for " just." Advocacy
connotes justice. Upon the altars of
justice the advocate must keep his seven
lamps clean and burning brightly. In
the centre of these must ever be the lamp
of honesty.
The English Bar is a society of advocates, though, as Blackstone tells us, we
generally call them counsel. The Scots
retain the name in their Faculty of Advocates The word must be insisted upon
14
SEVEN
LAMPS
OF
ADVOCACY
for its ancientry and meaning.
The order
of advocates is, in D'Aguesseau's famous
phrase, " as noble as virtue." Far back
in the Capitularies of Charlemagne it was
ordained of the profession of advocates
" that nobody should be admitted therein
but men mild, pacific, fearing God, and
loving justice, upon pain of elimination."
So may it continue, world without end.
From the earliest, Englishmen have
understood that advocacy is necessary to
justice, and honesty is essential to advocacy. The thirteenth century Mirrour
of Justices may, as modern jurists hold,
be a contemptible legal compilation. It
is said to have been written by one
Andrew Horn, a fishmonger ; and what
could he have known, say the learned ones,
about the origin and history of legal
affairs ? Nevertheless, to the reader of
to-day the views of the man in the street,
the common citizen of a bygone age,
about the place in the world of the advocate is more precious than many blackletter folios of crabbed juridical learning.
" Some there be," says our fishmonger
very shrewdly, " who know not how to
state their causes or to defend them in
court, and some who cannot, and therefore are pleaders necessary ; so that what
plaintiffs and others cannot or know not
THE
LAMP
OF
HONESTY
15
how to do by themselves they may do
by their Serjeants, proctors, or friends.
Pleaders are Serjeants wise in the law of
the realm who serve the commonality
of the people, stating and defending for
hire actions in court for those who have
need of them. Every pleader who acts
in the business of another should have
regard to four things : — First, that he be
a person receivable in court, that he be no
heretic, nor excommunicate, nor criminal,
nor man of religion, nor woman, nor
ordained clerk above the order of subdeacon, nor beneficed clerk with the cure
of souls, nor infant under twenty-one
years of age, nor judge in the same cause,
nor open leper, nor man attainted of
falsification against the law of his office.
Secondly, that every pleader is bound by
oath that he will not knowingly maintain
or defend wrong or falsehood, but will
abandon his client immediately that he
perceives his wrong-doing. Thirdly, that
he will never have recourse to false delays
or false witnesses, and never allege, proffer,
or consent to any corruption, deceit, lie,
or falsified law, but loyally will maintain
the right of his client, so that he may not
fail through his folly or negligence, nor by
default of him, nor by default of any
argument that he could urge ; and that
16
SEVEN
LAMPS
OF
ADVOCACY
he will not by blow, contumely, brawl,
threat, noise, or villain conduct disturb
any judge, party, serjeant, or other in
court, nor impede the hearing or the
course of justice. Fourthly, there is the
salary, concerning which four points must
be regarded — the amount of the matter
in dispute, the labour of the serjeant, his
value as a pleader in respect of his (learning), eloquence, and repute, and lastly
the usage of the court."
Note how from the earliest days the
advocate may in no way maintain or defend wrong or falsehood. It is the right
of his client he is there to uphold, and
the right only. Nevertheless, although
an advocate is bound by obligations of
honour and probity not to overstate the
truth of his client's case, and is forbidden
to have recourse to any artifice or subterfuge which may beguile the judge, he is
not the judge of the case, and within these
limits must use all the knowledge and gifts
he possesses to advance his client's claims
to justice.
Many good men have been troubled
with the thought that advocacy implied
a certain want of honesty. Boswell asked
Doctor Johnson whether he did not think
" that the practice of the law in some
degree hurt the nice feeling of honesty ? "
THE
LAMP
OF
HONESTY
17
To whom the doctor replied : " Why no,
Sir, if you act properly. You are not to
deceive
your clients with false representations of your opinion : you are not
to tell lies to a judge." Boswell : " But
what do you think of supporting a cause
which you know to be bad ? " Johnson :
" Sir, you do not know it to be good or
bad till the judge determines it. I have
said that you are to state facts fairly ;
so that your thinking, or what you call
knowing, a cause to be bad must be from
reasoning, must be from your supposing
your arguments to be weak and inconclusive. But, Sir, that is not enough. An
argument which does not convince yourself, may convince the judge to whom you
urge it : and if it does convince him, why,
then, Sir, you are wrong, and he is right.
It is his business to judge ; and you are
not to be confident in your own opinion
that a cause is bad, but to say all you can
for your client, and then hear the Judge's
opinion." Boswell : " But, Sir, does not
affecting a warmth when you have no
warmth, and appearing to be clearly of
one opinion when you are in reality of
another opinion, does not such dissimulation impair one's honesty? Is there not
some danger that a lawyer may put on the
same mask in common life, in the inter2
18
SEVEN
LAMPS
OF
ADVOCACY
course with his friends ? 99 Johnson: "Why
no, Sir, everybody knows you are paid for
affecting warmth for your client ; and it
is, therefore, properly no dissimulation :
the moment you come from the bar you
resume your usual behaviour. Sir, a
man will no more carry the artifice of
the bar into the common intercourse of
society, than a man who is paid for tumbling upon his hands will continue to
tumble upon his hands when he should
walk on his feet."
I like the rough English common-sense
of this ; but the Irishman in the dock had
an inspired vision of the same truth when,
in answer to the Clerk of the Crown, who
called upon him with the familiar interrogatory, "Guilty or Not Guilty?" he
replied with a winning smile, " And how
can I tell till I hear the evidence ? "
When Lord Brougham, at a dinner to
M. Berryer, claimed in his speech that the
advocate should reckon everything as
subordinate to the interests of his client,
Lord Chief Justice Cockburn, " feeling
that our guest might leave us with a false
impression of our ideals," set forth his
views of an advocate's duty, concluding
with these memorable words : " The arms
which an advocate wields he ought to use
as a warrior, not as an assassin.
He ought
THE
LAMP
OF
HONESTY
19
to uphold the interests of his client per fas,
and not per nefas. He ought to know how
to reconcile the interests of his clients
with the eternal interests of truth and
justice."
The best advocates of all generations
have been devotees of honesty. Abraham
Lincoln founded his fame and success in
the profession on what
" perverse honesty."
ance in the Supreme
some
called his
On his first appearCourt of Illinois he
addressed the court as follows : " This
is the first case I have ever had in this
court, and I have therefore examined
it
with great care. As the court will perceive by looking at the abstract of the
record, the only question in the case is
one of authority. I have not been able
to find any authority to sustain my side
of the case, but I have found several cases
directly in point on the other side. I will
now give these authorities to the court,
and then submit the case."
There have been advocates who regard
such a course as quixotic. The late Joshua
Williams was asked whether, if an advocate
knows of a decided case in point against
him which he has reason to believe is not
known to the other side, he is bound to
reveal it, and gave it as his opinion that
" in principle this is no part of his duty
20
SEVEN
LAMPS
OF
ADVOCACY
as an advocate." It must be remembered
that this opinion was given when a host
of cases were decided against their merits
on purely technical points of law ; but
there is no doubt what the practice ought
to be, and what among English advocates
the practice is.
If an advocate knows the law to be x,
it is not honest to lead the court to believe
that it is y. Whether
the advocate
does
this by directly mis-stating the law, or
by deliberately omitting to state it fully
within the means of his knowledge, it is
equally without excuse, and dims the lamp
of honesty.
For the advocate must remember that
he is not only the servant of the client, but
the friend of the court, and honesty is as
essential to true friendship as it is to sound
advocacy.
II
THE LAMP
OF COURAGE
II
THE
LAMP
OF
COURAGE
Advocacy needs the " king-becoming
graces : devotion, patience, courage, fortitude." Advocacy is a form of combat
where courage in danger is half the battle.
Courage is as good a weapon in the forum
as in the camp. The advocate, like Csesar,
must stand upon his mound facing the
enemy, worthy to be feared, and fearing
no man.
Unless a man has the spirit to encounter
difficulties with firmness and pluck, he had
best leave advocacy alone. Richard Bethell,
Lord Westbury, in early life took for his
motto : " De Vaudace et encore de Vaudace,
et toujours de Vaudace" In advising on a
case he was always clear and direct, saying
that he was " paid for his opinion, not for
his doubts." Charles Hatton, writing as a
layman of Jeffreys in his early days at
the bar, shrewdly notes his best quality :
" He hath in perfection the three chief
qualifications of a lawyer : Boldness, Bold23
ness, Boldness."
A modern advocate
24
SEVEN
LAMPS
OF
ADVOCACY
kindly reproving a junior for his timidity
of manner wisely said : " Remember it is
better to be strong and wrong than weak
and right."
The belief that success in advocacy
can
be attained by influence, apart from personal qualifications, is ill-founded. There
was never a youngster with better backing than Francis North, afterwards Lord
Keeper
to Charles II., yet, as his bio-
grapher says, " observe his preparatives,"
his earnest attendances at moots, his
diligent waiting in that " dismal hole " the
" corner chamber, one pair of stairs in
Elm Court."
In the same way his younger brother,
Roger, though born in the ermine, so to
speak, had to plod his way up like any
other junior. It is good to be the brother
of a Lord Chancellor, but it does not make
a man an advocate.
Roger North's autobiography is full of
interest to the student of advocacy. His
memory of his first appearance is vivid
and entertaining. " I was immediately
called," he writes, " to the Bar, ex gratia,
not having standing, although I had performed such exercises as the house required, save a few. My first flight in
practice was the opening a declaration at
Nisi Prius in Guildhall, under my brother,
THE
LAMP
OF
COURAGE
25
which was a crisis like the loss of a maidenhead ; but with blushing and blundering
I got through it, and afterwards grew bold
and ready at such a formal performance ;
but it was long ere I adventured to ask
a witness a question."
Roger North would never have attained
the eminence he did in his profession by
merely hanging on to the gown of his
greater brother. Hard work and dogged
courage, not patronage, earned him the
dignities he achieved. The description
of his early beginnings is full of encouragement for the young advocate. " During
my practice under Hale," he says, " at
the King's Bench I was raw, and not at all
quaint and forward as some are, so that I
did but learn experience and discover my
own defects, which were very great. I was
a plant of a slow growth, and when mature
but slight wood, and of a flashy fruit.
But my profession obliged me to go on,
which I resolved to do against all my
private discouragements, and whatever
absurdities and errors I committed in
public I would not desist, but forgot them
as fast as I could, and took more care
another time. My comfort was, if some,
all did not see my failings, and those upon
whom I depended, the attorneys and
suitors, might think the pert and confident
26
SEVEN
LAMPS
OF
ADVOCACY
forwardness I put on might produce somewhat of use to them."
North held the sound opinion that 4 4 he
who is not a good lawyer before he comes
to the Bar, will never be a good one after
it." It is very true that learning begets
courage, and wise self-confidence can only
be founded on knowledge. The long years
of apprenticeship, the studious attention
to " preparatives," are, to the advocate,
like the manly exercises of the young
squire that enabled the knight of old to
earn his spurs on the field of battle. In
no profession is it more certain that
4 4 knowledge is power," and when the
opportunity arrives, knowledge, and the
courage to use it effectively, proclaim the
presence of the advocate.
The best instance of what is meant
perhaps may be found in Sir John Hollams's account of the first appearance of
Mr. Benjamin. He was a great lawyer
before he addressed the court, but he sat
down a great advocate. It was in a case
which came on for hearing before Lord
Justice James, then Vice-Chancellor, and
" it appeared to be generally thought that,
as usual at the time, a decree would be
made directing inquiries in chambers. The
matter was being so dealt with when
Mr. Benjamin, then unknown to any one
THE
LAMP
OF
COURAGE
27
in Court, rose from the back seat in the
Court. He had not a commanding presence, and at that time had rather an uncouth appearance. He, in a stentorian
voice, not in accord with the quiet tone
usually prevailing in the Court of Chancery, startled the Court by saying, 6 Sir,
notwithstanding the somewhat off-hand
and supercilious manner in which this
case has been dealt with by my learned
friend Sir Roundell Palmer, and to some
extent acquiesced in by my learned leader
Mr. Kay, if, sir, you will only listen to
me — if, sir, you will only listen to me 5
(repeating the same words three times, and
on each occasion raising his voice), ' I
pledge myself you will dismiss this suit
with costs.' The Vice-Chancellor and
Sir Roundell Palmer, and indeed all the
Court, looked at him with a kind of
astonishment, but he went on without
drawing rein for between two and three
hours. The Court became crowded, for it
soon became known that there was a very
unusual scene going on. In the end the
Vice-Chancellor did dismiss the suit with
costs, and his decision was confirmed on
appeal."
There have been many advocates whose
courage was founded on humour rather
than knowledge,
and
who
have success-
28
SEVEN
LAMPS
OF
ADVOCACY
fully asserted their independence in the
face of an impatient or overbearing Bench
through the medium of wit, where mere
wisdom might have failed in effect.
Of such was Tom Jones, who startled
Mr. Justice Byles into indignant attention by opening his case with bold impertinence : " No one, my lords, who
looks at this case with common fairness
and honesty, can hesitate for a moment
in declaring that there ought to be a
new trial."
Byles observed, " This is rather strong
language to use to us, Mr. Jones. I hope
you think that we, at the least, are commonly fair and honest."
" We shall see, my lord," said Tom ;
" we shall see."
Serjeant Robinson tells us a farther
good story of Tom's
by the Bench.
refusal to be hustled
44 Our friend Tom Jones," he writes,
" was a little lengthy sometimes in the
exposition of his client's rights, and one
day the chief baron said to him, 4 Mr.
Jones, this case has occupied a great deal
of time, and we have a very long list of
cases to get through.'
44 4 My lord,' said Tom, 4 1 have carefully looked through that list, and I did
not find there was a single cause in which I
THE
or my
LAMP
OF
COURAGE
29
client was in the slightest degree
interested.' "
But these sallies should never degenerate
into mere incivility or abuse, in which
there is little real courage, since a judge of
sense will always refrain, if it be at all
possible, from reply to such attacks, which
only injure the reputation of the Bar and
destroy the reputation of the advocate.
In the early days of American Sessions a
certain judge was violently attacked by a
young and very impudent attorney. To
the manifest surprise of everybody present,
the judge heard him quite through as
though unconscious of what was said, and
made no reply. After the adjournment
of the day, and all had assembled at the
inn where the judge and many of the
attorneys had their lodgings, one of the
company, referring to the scene in court,
asked the judge why he did not rebuke
the impertinent fellow.
" Permit me," said the judge, loud
enough to call the attention of all the
company, among whom was the fellow in
question — " permit me to tell you a story.
My father, when we lived down in the
country, had a dog — a mere puppy, I
may say. Well, this puppy would go out
every moonlight night and bark at the
moon
for hours
together."
Here
the
30
SEVEN
LAMPS
OF
ADVOCACY
judge paused, as if he had done with his
story.
" Well, what of it ? " exclaimed
a-dozen of the audience at once.
half-
" Oh, nothing, nothing whatever ; the
moon kept right on, as if nothing had
happened."
Independence without moderation becomes licentiousness, but true independence is an essential attribute of advocacy,
and the English Bar has never wanted men
endowed with this form of true courage.
The sacrifice of the highest professional
honours to the maintenance of principle
has been a commonplace in the history of
English advocates, and the names of the
living could be added if need be to those
who have passed away, leaving us this
clean heritage as example.
The true position of the independence of
the English Bar, the right and the duty of
the advocate to appear in every case, however poor, degraded, or wicked the party
may be, is laid down once and for all in a
celebrated speech of Erskine's in his defence of Thomas Paine, who was indicted
in 1792 for publishing the Rights of Man.
Great public indignation was expressed
against Erskine for daring to defend Paine.
As he said in his speech, " In every place
where business or pleasure collects the
THE
LAMP
OF
COURAGE
31
public together, day after day, my name
and character have been the topics of
injurious reflection. And for what ? Only
for not having shrunk from the discharge
of a duty which no personal advantage recommended, and which a thousand
difficulties repelled."
He then continued, in words which the
learned editor of Howell's State Trials emphasises by printing in capital letters, to
enunciate one of the basic principles of
English advocacy :
" Little, indeed, did they know me, who
thought that such calumnies would influence my conduct : I will for ever, at
ALL HAZARDS, ASSERT THE DIGNITY, INDEPENDENCE, AND INTEGRITY OF THE ENGLISH Bar ; without which, impartial
justice, the most valuable part of the
English Constitution, can have no
existence. From the moment that any
advocate can be permitted to say that he
will or will not stand between the Crown
and
the subject arraigned in the court
where he daily sits to practise — from that
moment the liberties of England are at an
end. If the advocate refuses to defend,
from what he may think of the charge or
of the defence, he assumes the character
of the judge ; nay, he assumes it before
the hour of judgment ; and, in proportion
32
SEVEN
LAMPS
OF
ADVOCACY
to his rank and reputation, puts the heavy
influence of perhaps a mistaken opinion
into the scale against the accused, in
whose favour the benevolent principle of
English law makes all presumptions, and
which commands the very judge to be
his counsel."
Side by side with this may be set the
grand example of William Henry Seward
in acting in the defence of the negro Freeman in 1846. A horrible murder was
committed. Without any provocation or
desire for plunder, Freeman killed a farmer
and several of his family. He was easily
captured, when he laughed in the face
of his captors and acknowledged the crime.
He was a recently emancipated slave, deaf,
and obviously insane. The sheriff had
the greatest difficulty in preventing him
from being lynched. The clergyman at
the victims' funeral made a rousing appeal
for his punishment, which was printed and
circulated round the district.
Seward
undertook
his defence, and
a
storm of prejudice and passion was directed
against him to dissuade him from doing
what he believed to be his duty as an
advocate. In the crowded court-house,
when the judge asked, " Will any one
defend this man ? " and Seward rose, and
said he wTas counsel for the prisoner, a
THE
LAMP
OF
COURAGE
33
murmur of indignation ran round the
court. His advocacy was of no avail to
the individual, but his eloquent speech
remains a noble statement of the duty
of the advocate, and a fine example of
devotion and courage in the exercise of
that duty.
The whole speech is worthy of study, as
it contains a glowing and reasoned appeal
for the right of the most degraded human
being in a civilised state to a real hearing of
his case in a judicial court, which can only
be obtained through honest and competent
advocacy.
As the yellow harvest-moon rose outside the darkening court-house his peroration was listened to by the indignant
crowd with, at least, outward respect, and
it remains a message of encouragement to
the advocates of future generations.
" In due time, gentlemen of the jury,
when I shall have paid the debt of nature,
my remains will rest here in your midst
with those of my kindred and neighbours.
It is very possible they may be unhonoured, neglected, spurned ! But perhaps
years hence, when the passion and excitement which now agitate this community
shall have passed away, some wandering
stranger, some lone exile, some Indian,
some negrq, may erect over them an
3
34
SEVEN
humble
LAMPS
OF
ADVOCACY
stone, and thereon this epitaph :
1 He was faithful.' "
These words, as he desired, are engraved
on the marble over him, and he is remembered at the American Bar as an advocate
who upheld its best traditions, and feared
not to hold aloft the Lamp of Courage.
Ill
THE LAMP
OF INDUSTRY
Ill
THE
LAMP
OF
INDUSTRY
The first task of the advocate is to learn
to labour and to wait. There never was a
successful advocate who did not owe some
of his prowess to industry. From the biographies of our ancestors we may learn
that the eminent successful ones of each
generation practised at least enough industry in their day to preach its virtues to
aspiring juniors.
Work soon becomes a habit. It may not
be altogether a good habit, but it is better
to wear out than to rust out. Nothing,
we are told, is impossible to industry.
Certainly without industry the armoury of
the advocate will lack weapons on the day
of battle.
There must be years of what Charles
Lamb described with graceful alliteration
as " the dry drudgery of the desk's dead
wood " before the young advocate can
hope to dazzle juries with eloquent perorations, confound dishonest witnesses by
skilful cross-examination,
and lead the
37
38
SEVEN
LAMPS
OF
ADVOCACY
steps of erring judges into the paths of
precedent.
All great advocates tell us that they have
had either steady habits of industry or
grand outbursts of work. Charles Russell
had a continuous spate of energy. Many
of us can remember him, tireless and active
himself, bustling into the robing-room
at
St. George's Hall, Liverpool, and finding
several members of the Junior Bar standing around the fire.
" Why are you loafing about here ? "
he asked. " Why don't you do something ? "
" We have nothing to do," said the
Junior Bar.
" Why don't you go to the races ? " he
rejoined.
" Do something ! "
Abraham Lincoln owed his sound knowledge of law to grim, zealous industry.
As a storekeeper he studied Blackstone out
of shop-hours, perched on a wood-pile or
lying under a tree. On circuit, in the
bedroom of the village inn, a candle at
his head and his feet protruding over the
foot-board of his bed, he lay reading law
until two in the morning, undisturbed by
snoring comrades. When possible, he
would read aloud, for thus, he said, " two
senses catch the idea. First, I see what I
read ; second, I hear it, and can therefore
remember
it better." In after-life to every
THE
LAMP
OF
INDUSTRY
39
student who came near him his advice was,
" Work ! work ! work ! "
Advocacy is indeed a life of industry.
Each new success brings greater toil.
Campbell, writing home from the Oxford
Circuit, describes the weary round of his
daily task. Some advocates suffer thus
every day the court sits, whilst others sit
round and suffer envy.
my
" I ought to have got so far to-night on
way to Hereford, but we have a long
day's work before us, and I shall be obliged
to travel all to-morrow night. You can
hardly form a notion of the life of labour,
anxiety, and privation which I lead upon
the circuit. I am up every morning by
six. I never get out of court till seven,
eight, or nine in the evening, and, having
swallowed any indifferent fare that my
clerk provides for me at my lodgings, I
have consultations and read briefs till I
fall asleep. This arises very much from
the incompetence of the judge. It is from
the incompetency of judges that the chief
annoyances I have in life arise. I could
myself have disposed of the causes here
in half the time the judge employed. He
has tried two causes in four days. Poor
fellow, he is completely knocked up."
An advocate must study his brief in
the same way that an actor studies his
40
part.
SEVEN
LAMPS
OF
Success in advocacy
ADVOCACY
is not arrived
at by intuition. Mr. O'Brien, in his excellent biography of Charles Russell, details
an interesting conversation with his hero
which enforces this truth. He had raised
the question of an advocate succeeding by
mere intuition in picking up the threads
of a case in court, when Russell interrupted him in a characteristic phrase.
" 4 That's all nonsense,' he said.
' You
don't know anything by intuition. You
have to work hard and to think hard. I
get some good help, as I tell you. My mode
of work is this : One of these young men
reads the brief and makes a note — a full
one.
I go through the note with him '
(smiling), ' cross-examining him, if you
like.
Sometimes, I admit, it may not be
necessary for me to read the brief; the
note may be so complete, and the man's
knowledge of the case so exact, that I get
everything from him.
But it often is —
in fact, generally is — necessary to go to the
brief.
You have seen me reading briefs
here. I admit that I am quick in getting
at the kernel of a case, and that saves me
some trouble ; but I must read the brief
with my own eyes, or somebody else's.'
" I said, ' Sir John Karslake went blind
because he could only read his brief with
his own eyes. It is a great point to be able
THE
LAMP
OF
INDUSTRY
to read your brief with somebody
41
else's
!'
eyes
" Russell— Well, well, well, that's so !
but it is not intuition.'
" I said, ' It has been said that O'Connell
never read his brief when he appeared for
the defendant. He made his case out of
the plaintiff's case.'
" Russell — 6 1 don't think that is likely ;
I think O'Connell knew his case — the
vital points in his case — before he went
into court. There is often a great deal in
a brief which is not vital, which is not even
pertinent. I can read a brief quickly ; I
can take in a page at a glance, if you like ;
I can throw the rubbish over easily, and
come right on the marrow of the case.
But I can only do that by reading the
brief, or by the help of my friends. I
learn a great deal at consultations ; I am
not above taking hints from everybody,
and I think carefully over everything that
is said to me ' (holding his hand up with
open palm) ; ' I shut out no view. If
I have a good point, it is that I can see
quickly the hinge on which the whole case
turns, and I never lose sight of it. But that
is not intuition, my friend ; it is work.' "
Industry in reading and book-learning
may make a man a good jurist, but the
advocate must exercise his industry in
42
SEVEN
LAMPS
OF
ADVOCACY
the double art of speaking and arranging
his thoughts in ordered speech. He must
be ready to leave his books awhile and
practise the athletics of eloquence with
equal industry.
The
silver-tongued Heneage
Finch
ad-
vises students " to study all the morning
and talk all the afternoon." Old Serjeant
Maynard, deeply learned in booklore as
he was, described the calling of the advocate as ars bablativa. Brougham told
the law students of London University
to habituate themselves to talk about
everything.
For " bare reading without practice
pedantiseth a student, but never makes
him a clever lawyer." Our fathers understood this better perhaps than we do, and
made provision of halls and cloisters and
gardens, where students could take exercise and discuss the mysteries of their
profession when the hours of reading were
over.
Roger North
tells us in his life of his
brother, the Lord Keeper : "I remember
that, after the fire of the Temple, it was
considered whether the old cloister walks
should be rebuilt or rather improved into
chambers ; which latter had been for the
benefit of the Middle Temple. But in
regard it could not be done without the
THE
LAMP
OF
INDUSTRY
43
consent of the Inner house, the masters
of the Middle house waited upon the then
Mr. Attorney Finch, to desire the concurrence of his society upon a proposition of
some benefit to be thrown in on that side.
But Mr. Attorney would by no means
give way to it, and reproved the Middle
Templars very wittily and eloquently upon
the subject of students walking in evenings there and putting cases, 4 which,' he
said, 6 was done in his time, as mean and
low as the buildings were then, however
it comes that such a benefit to students
is now made so little account of.' And
thereupon the cloisters, by the order and
disposition of Sir Christopher Wren, were
built as they now stand."
The days of wandering in cloisters and
gardens, putting cases to one's fellowstudents, and listening to the wisdom of
elders by the margin of the fountain are,
alas ! not for us. But even to-day a wise
youngster should recognise that sitting in
court to listen to the conduct of cases,
attendance at circuit mess and dining in
Hall, where the law-talk of seniors may
still on occasion be of value — these things
are all forms of industry, for the advocate
can only learn the true creed of his faith
from oral tradition.
In recent years we have wisely revived
44
SEVEN
LAMPS
OF
ADVOCACY
the old moots which date back to early
days when the Inns of Court were really
schools of law. Dugdale thus describes
the ancient ceremony of the moot : " The
pleadings are first recited by the students,
then the case heard and argued by the
barristers ; and lastly by the reader elect
and benchers, who all three argue in
English ; but the pleadings are recited,
and the case argued by the utter barristers,
in law French. The moot being ended, all
parties return to the cupboard, where the
mootmen present the benchers with a
cup of beer and a slice of bread."
Roger North also remembers that in his
day, the time of Charles II., the custom
of mooting had been discontinued for
upwards of a century ; but modern wisdom brings us back to many old customs
of our fathers, and to-day all dramatic
methods of education are recognised as of
greater value than dictatorial lectures.
And not only are these more social
forms of industry good in themselves, but
they are the only antidote to that despondency and dread of failure which cloud the
brightest and most hopeful mind in the
long days of apprenticeship. Even the
greatest advocates have suffered such
moments. Had John Scott yielded to his
own sinking inclinations, he might have
THE
LAMP
OF
INDUSTRY
45
been a provincial barrister at Newcastle
instead of Lord Chancellor ; Kenyon nearly
became a Welsh parson instead of Chief
Justice of England ; and Russell tells us
that in our own day Gully nearly exiled
himself to the Straits Settlements, and
Herschell proposed
Indian Bar.
to emigrate
to the
A learned County Court judge, in dealing with the unfortunate bankruptcy of a
brother-barrister, expressed the opinion
that for a man to come to the Bar without
private means,
or, at least, expectations
from a maiden aunt, was " a rash and
hazardous speculation." His dictum was
unsound in law and history. Some of the
greatest advocates began life as poor men.
And
though men of wealth have succeeded in advocacy, yet poverty is a true
friend to industry. " Parts and poverty,"
said Lord Chancellor Talbot, " are the
only things needed by the law student."
Kenyon, when asked by a fashionable
lady how her son might best prepare for
success at the Bar, said : " Let him
spend all his money, marry a rich wife,
spend all hers, and when he has got not
a shilling in the world, let him attack the
law." For a lawyer, as an old pleader
said, must be prepared in his early days
" to eat sawdust
without
butter," or, as
46
SEVEN
LAMPS
OF
ADVOCACY
Lord Eldon put it, 44 to live like a hermit
and work like a horse."
If a man is endowed with health and
industry, the profession of an advocate
is
not 44 a rash and hazardous speculation."
He may even without blame give hostages
to fortune, remembering that when Erskine
made his first appearance at the Bar his
agitation nearly overcame him, and he
was just about to sit down a failure when,
he says, 44 I thought I felt my little children
tugging at my gown, and the idea roused
me to an exertion of which I did not think
myself capable." He succeeded, indeed,
far beyond his expectations, and he found,
when he had overcome that first modest
inertia which benumbs even the greatest
genius, that he was fully equipped to fight
the battles of his clients against all comers.
And the reason of it was that he had not
failed to read and learn and digest beneath
the Lamp of Industry.
IV
THE
OF
LAMP
WIT
IV
THE
LAMP
OF
WIT
At the back of this little word " wit "
lies the idea of knowledge, understanding,
sense. In its manifestation we look for a
keen perception of some incongruity of
the moment. The murky atmosphere of
the court is illuminated by a flash of
thought, quick, happy, and even amusing.
Wit, wisely used, bridges over a difficulty,
smooths away annoyance, or perhaps turns
aside anger, dissolving embarrassment in
a second's laughter.
Nor can " (laughter in court)," a derogatory parenthesis unknown in the official
law reports, be wholly condemned among
human men. " How much lies in laughter,
the cipher key wherewith we decipher the
whole man ! " Laughter may be derisive,
unkind, even cruel, or it may be rightly
used as a just weapon of ridicule wherewith
to smite pretension and humbug. It may
be gracious and full of kindliness, putting a
timid man at his ease, or instinct with
good-humour,
4
softening wrath or mitigat49
50
SEVEN
LAMPS
OF
ADVOCACY
ing tedious irrelevancy. It may be the
due recognition of a witty text preaching
a useful truth, that could otherwise be
expressed only in a treatise ; as when
Common Law said unto Chancery, " Truth
will leak out even in an affidavit ; " or
when Erskine replied to Kenyon, who
suggested that he should apply to Chancery for relief, " Would your lordship
send a dog you loved there ? "
From the earliest times wit has been a
light to lighten the darkness of advocacy.
Cicero was noted for the jests and repartees
which punctuated his forensic speeches,
and these were held " not foreign to the
business of the forum." Yet, like many a
man of wit, he stumbled on occasion
through the temptation of the gift, and
offended some with malevolent sayings,
as Bethell and others have done in our
own time. It is easy to forget the poet's
warning about " the medium in all
things."
Pedants
and bores resent all forms of
wit, but a real humorist rejoices in nothing
so much as a good story against himself.
Rufus Choate was a man of great eloquence and abounding vocabulary, but
he had a true sense of wit. No one enjoyed
better the remark of Mr. Justice Wilde, a
dry, precise judge who, out of court, on
THE
LAMP
OF
WIT
51
occasion allowed his wit expression. He was
asked by a junior if he had not heard that
Mr. Worcester had just published a new
edition of his dictionary with a great number of additional words. Gripping his
young
friend's arm, he said in a perturbed whisper, " No, I had not heard of
it. But, for God's sake, don't tell Choate ! "
Choate had his own wit, which charmed
many juries to his clients' cause. No one
could more pleasantly disperse the frowning morality of a common jury by a
human simile. What could be more pastoral
and poetical than his description of his
clients in an Arcadian divorce case ?
" They were playful, gentlemen of the
jury, not guilty. After the morning toil
they sat down upon the hay-mow for
refreshment, not crime. There may have
been a little youthful fondling, playful,
not amorous. They only wished to soften
the asperities of hay -making." One can see
the jury broadening into sympathy and
smiles over the pleasantry of the final
phrase.
Often the wit of an advocate
will turn
a judge from an unwise course where
argument or rhetoric would certainly fail.
Lord Mansfield paid little attention to
religious holidays. He would sit on AshWednesday, to the scandal of some mem-
52
SEVEN
LAMPS
OF
ADVOCACY
bers of the Bar, whose protests made no
impression upon him. At the end of
Lent he suggested that the court might
sit on Good Friday. The me/nbers of the
Bar were horrified. Serjeant Davy, who
was in the case, bowed in acceptance of
the proposition. " If your lordship pleases ;
but your lordship will be the first judge
that has done so since Pontius Pilate."
The court adjourned until Saturday.
But the learned Serjeant " Bull Davy,"
as he was called on circuit, could never
pass a jest, even at the expense of his
client. He was defending a criminal
against whom the prosecution had opened
a very strong case.
" Who is concerned for the prisoner ? "
" My lord," replied Davy, rising with
grave solemnity, " I am concerned for
him, and very much concerned, after what
I have heard."
Wit is often the fittest instrument
with
which to destroy the bubble of bombast.
When Curran, in an outburst of histrionic
anger, placed his hand
upon
his heart,
saying, " 1 am the trusty guardian of my
own honour," it was Sir Boyle Roche who
spoiled the episode by rising with much
friendliness to say, " I congratulate my
honourable friend on the snug little sinecure to which he has appointed himself."
THE
LAMP
OF
WIT
53
Wit may fairly be used to strip the
cloak of pretension from the shoulders of
impudence. Holker was cross-examining
a big vulgar Jew jeweller in a moneylending case and began by looking him up
and down in a sleepy dismal way and
drawled out : " Well, Mr. Moselwein,
what are you ? "
" A genschelman,"
with emphasis.
and
replied the jeweller
" Just so, just so," ejaculated Holker
with a dreary yawn, " but what were you
before you were a gentleman ? "
Wit, skilfully used, is the kindliest and
most effective method of exhibiting the
futility of judicial interruptions.
" Where do you draw the line, Mr.
Bramwell ? " asked a learned judge in the
Court of Common Pleas.
" I don't know, and I don't care, my
lord. It is enough for me that my client
is on the right side of it."
Wit and courtesy need never be divorced.
They are, indeed, complementary. Wit,
deftly used, refreshes the spirit of the
weary judge.
Lord Chief Justice Coleridge, writing
from the Northern Circuit, says : " Gully
was excellent. His phrase, when he asked
for a stay of execution ' in order to consider more at leisure some of your lord-
54
SEVEN
LAMPS
OF
ADVOCACY
ship's observations,' tickled my fancy very
much. Misdirection was never more
courteously described."
Satire or irony is often in danger of
being misunderstood by the simpleminded jury. Ridicule, to be effective,
must be pointed, even extravagant.
In combating the defence of Act of God
set up by an American advocate defending
a client on the charge of arson, Governor
Wisher, for the prosecution, disposed of
the theory of spontaneous combustion,
and succeeded in satisfying the jury of its
absurdity : " It is said, gentlemen, that
this was Act cf God. It may be, gentlemen.
I believe in the Almighty's power to do
it, but I never knew of His walking twice
round a straw stack to find a dry place to
fire it, with double-nailed boots on so
exactly fitting the ones worn by the
defendant."
Bowen, on the Western Circuit, was less
fortunate. Prosecuting a burglar caught
red-handed on the roof of a house, he left
the case to the jury in the following terms :
" If you consider, gentlemen, that the
accused was on the roof of the house for
the purpose of enjoying the midnight
breeze, and, by pure accident, happened
to have about him the necessary tools of
a housebreaker,
with no dishonest inten-
THE
LAMP
OF
WIT
55
tion of employing them, you will, of course,
acquit him." The simple sons of Wessex
nodded complacently at counsel, and,
accepting his invitation, acquitted the
prisoner.
And as there is danger of satire being
misunderstood, there is also a certain
danger that an advocate, in an endeavour
to shorten a case, may fail to drive home all
the points he seeks to make. Modern
advocates, however, are more likely to
remind the Bench of Quintilian's maxim,
" There is not so much inconvenience in
listening to superfluous matter as to be
ignorant of such things as are necessary,"
than to remember the more pertinent first
principle of their own art that " brevity
is the soul of wit."
It has always been a reproach to our
advocacy that it injured its clients by
calculated circumlocution, an exuberance
of verbosity, and a prolixity of style and
method ruinous to the widows and the
fatherless and the strangers that strayed
within the gates of the temple.
Good advocacy displays the highest form
of wit in an instinct for brevity. The
healthy appetite of judge and advocate
alike is shown in a keenness to " get
through the rind of the orange and reach
the pulp as soon as possible." This wit and
56
SEVEN
LAMPS
OF
ADVOCACY
wisdom of Bramwell should be painted on
the wall in bold letters of silver opposite
every judge on the bench, and in larger
letters of gold over every bench in the
kingdom in the
advocates.
face of the
nation's
Judges are, indeed, a long-suffering race,
but there are some advocates difficult to
suffer gladly. Mr. Justice Wightman
showed a Christian forbearance to Mr. Ribton, who, after pounding away for several
hours, began repeating himself unto the
third or fourth iteration.
" Really, Mr. Ribton, you know, you've
said that before."
" Have
I, my
lord ?
I am
very sorry.
I quite forgot it."
" Don't apologise," said the mild old
judge, patiently stifling a sigh. " I forgive
you ; for it was a very long time ago."
How many advocates weary juries into
forgetfulness by long-continued repetition
of their cross-examination, often giving
a clever witness opportunities of rehabilitating himself, forgetting Josh Billings's
immortal advice : " When you strike ile,
stop boring ; many a man has bored
clean thru and let the ile run out of the
bottom."
But whatever sound maxims may be
cited, it is to be feared that there will
THE
LAMP
OF
WIT
57
always be a line of advocacy answering to
the definition of length without breadth.
Nor will the old story, first told, perhaps,
of Chief Baron Kelly, ever want a new and
even more long-winded hero. A legal comrade of Kelly on circuit dreamed that they
appeared before the tribunal on the Great
Day of Judgment. Upon Kelly's name
being called, and his being put up in the
dock, the recording angel arose and shouted
out in a loud voice, " No other case will be
taken to-day ! "
Lest I should provoke a similar reproof
from a devout reader, let me leave the
Lamp of Wit upon the altar of justice
and retire from the pulpit.
V
OF
THE LAMP
ELOQUENCE
V
THE
LAMP
OF
ELOQUENCE
The eloquence of advocates of the past
must largely be taken on trust. There is
no evidence of it that is not hearsay. For,
though we have the accounts of earwitnesses of the eloquence of Erskine,
Scarlett, Choate, or Lincoln, and can ourselves read their speeches, the effect of
their eloquence does not remain. We are
told about it by those who experienced it,
and can believe or not as we choose. It is
the same with actors.
It requires genius
to describe acting, so that the reader captures some of the experience of the witness.
Fielding did it for Garrick when he took
Partridge to see Hamlet ; Charles Lamb
can feature the old actors for us on the
screen of the written page ; but how few
real records remain of the eloquence of
the advocates of old !
Perhaps the best way to realise their
powers is to read their speeches aloud ;
but even then they seem diffuse and out
of proportion to the present interest in the
61
62
SEVEN
LAMPS
OF
ADVOCACY
litigation. The most eloquent advocacy
that is reported in print is to be found
not in law reports, but in fiction — in the
speeches of Portia and Serjeant Buzfuz,
for instance, where for all time the world
continues hanging on the lips of the advocate in excited sympathy with the client.
There are some who think that rhetoric
at the Bar has fallen in esteem. The modern
world has certainly lost its taste for sweet
and honeyed sentences, and sets a truer
value on fine phrases and the fopperies
of the tongue ; but there will always be a
high place in the profession for the man
who speaks good English with smooth
elocution, and whose speeches fall within
Pope's description :
Fit words attended on his weighty sense,
And mild persuasion flow'd in eloquence.
The test of eloquence in advocacy is
necessarily its effect upon those to whom
it is addressed. The aim of eloquence is
persuasion. The one absolute essential
is sincerity, or, perhaps one should say,
the appearance of sincerity. As Garrick
reminded a clerical friend : " We actors
portray fiction as if it were truth, and
you clergymen preach truth as if it were
fiction." It is no use preaching to a jury,
but the eloquence of persuasion will work
THE
LAMP
OF
ELOQUENCE
63
miracles ; and there is a well-authenticated story on every circuit of the criminal
who, listening with rapt attention to his
counsel's pathetic details of his wrongs,
burst into sobs after his peroration, crying
out, " 1 never knew I was such an ill-used
man until now — s'help me, I never did ! "
It would appear from the history of
advocacy that the flame of the lamp of
eloquence may vary from time to time in
heat and colour. One cannot say that
the style of one advocate is correct and
another incorrect, since the style is the
attribute of the man and the generation
he is trying to persuade. Yet, however
different the style may be, the essential
power of persuasion must be present.
He must, as Hamlet says, be able to play
upon his jury, knowing the stops, and
sounding them from the lowest note to
the top of the compass.
Brougham's tribute to Erskine's eloquence is perhaps the best pen-picture of
an English advocate we possess, and it is
noticeable how he emphasises this power
of persuasion and endeavours to solve
the psychology of it. He places in the
foreground the physical appearance of the
man, a great factor in each style of
advocacy.
" Nor let it be deemed
trivial," he says,
64
SEVEN
LAMPS
OF
ADVOCACY
" or beneath the historian's province, to
mark that noble figure, every look of
whose countenance is expressive, every
motion of whose form graceful, an eye that
sparkles and pierces, and almost assures
victory, while it 6 speaks audience ere the
tongue.' Juries have declared that they
felt it impossible to remove their looks
from him when he had riveted and, as it
were, fascinated them by his first glance ;
and it used to be a common remark among
men who observed his motions that they
resembled those of a blood-horse, as light,
as limber, as much betokening strength
and
speed, as free from all gross superfluity or encumbrance. Then hear his
voice of surpassing sweetness, clear,
flexible, strong, exquisitely fitted to strains
of serious earnestness, deficient in compass
indeed, and much less fitted to express
indignation, or even scorn, than pathos,
but wholly free from harshness or monotony. All these, however, and even his
chaste, dignified, and appropriate action,
were
very small parts of this wonderful advocate's excellence. He had a
thorough knowledge of men, of their
passions, and their feelings — he knew every
avenue to the heart, and could at will make
all its chords vibrate to his touch. His
fancy, though
never
playful in public,
THE
where
LAMP
he had
OF
ELOQUENCE
his whole
65
faculties under
the most severe control, was lively and
brilliant ; when he gave it vent and scope
it was eminently sportive, but while representing his client it was wholly subservient
to that in which his whole soul was
wrapped
up, and to which each faculty of
body and of mind was subdued — the
success of the cause."
And if one reads the speeches of our
greatest advocates and the records of
those who heard them, one finds that each
had some peculiar condiment of eloquence,
so that if one could beg a flavour from each
one might hope to produce an olio of supereloquence.
Bethell, for instance, was a master of
deliberation, remembering Bacon's maxim
that " a slow speech confirmeth the
memory, addeth a conceit of wisdom to
the hearers." Shorthand- writers listened
eagerly to his speeches, fearing to miss a
sentence that would ruin their report.
Repetitions and unnecessary phrases were
banned, and useless words he looked upon
as matter in the wrong place. His voice
was clear and musical, and he had a telling
wit. Students from the first thronged the
court to learn his magic, and judges listened to him with respect. When he was
a junior it is said that Sir John Leach,
5
66
SEVEN
the Master
LAMPS
OF
ADVOCACY
of the Rolls, succumbing
to
his arguments, said, " Mr. Beethell, you
understand the matter as you understand
everything else." And that was the real
secret of Mr. BethelPs eloquence.
Serjeant Copley, better known as Lord
Lyndhurst, was not a brilliant or showy
advocate, but, as a friend said, " had no
rubbish in his head." He won many of
his triumphs by dexterous and successful
sophistry and his extreme plausibility of
manner. Mr. James Grant tells us that
" a perpetual smile played on his countenance while he gazed at the faces of the
court and the jury ; and there was something so winning in the tones of his voice
that he must have been a man possessing a
remarkably lively perception of the real
facts of a case, of a vigorous intellect, and
of great energy of character who was not
carried away by Mr. Copley's address."
The mere wording of the description might
suggest to an unsympathetic reader that
Serjeant Copley was the Fascination
Fledgeby of the Bar, but the intention of
the writer was probably to portray something of that charm of manner which is
often a form of eloquence leading to the
highest success in advocacy. Gully, in
our own day, possessed it in a high degree.
It is easy to fall under the spell of it in
THE
LAMP
OF
ELOQUENCE
67
court, but it would require the pen of a
genius to recall it to life on the printed page.
Eloquence of manner is real eloquence,
and is a gift not to be despised. There
is a physical as well as a psychological side
to advocacy, documentary evidence of
which may be found in the old prints and
portraits of those who have been called to
high office from among us. They are, on
the whole, a stout, well-favoured race.
Charm of voice and manner has always
received due reward. Thomas Denman
had a fine, musical voice, an easy manner,
and the sincerity and fervour of his address
made him a popular advocate. Scarlett
was " the very incarnation of contentedness and good nature." A spectator notes
his " perpetual cheerfulness," his " laughing and seductive eyes," his " How-doyou-do style " as he used to stand before
the jury, " fold up the sides of his gown on
his hands, and then, placing his arms on
his breast, smile in their faces from the
beginning to the end of his address, talking
all the while to them as if he were engaged
on a mere matter of friendly conversation."
Many an advocate has attempted a
similar method with but small success,
and there must have been, as Mr. Atlay
says, " an exquisite dexterity " in his
method of address that does not reach us
68
SEVEN
LAMPS
OF
ADVOCACY
through contemporary descriptions. The
effect of it was undoubted. A NorthCountry juryman was once asked, after a
long assize at Lancaster, " What do you
think of the counsellors on the Northern
Circuit ? "
" Why," he replied, 44 there's not a man
in England can touch that Mr. Brougham."
" But you gave all the verdicts to Mr.
Scarlett ? "
" Why, of course ; he gets all the easy
cases."
It is eloquence that persuades the jury
that your case is the easy case. As Cobbett
said — and Cobbett had a common jury
mind — " He is an orator that can make
me think as he thinks, and feel as he
feels."
Mr. Montagu Williams has pointed out
that the best English eloquence of his time
was founded on what he calls a solid style
of advocacy. 44 As leading examples," he
writes, 44 of what I may call the solid style,
I should name Serjeant Shee, Serjeant
Parry, and Lord Justice Holker. When I
say 4 solid,' I do not refer to heaviness of
manner, but to solidity of appearance,
robustness of speech, and a general air of
good English honesty. This style is very
taking with the juries of this country.
It was the heavy, nay, almost languid, way
THE
LAMP
OF
ELOQUENCE
69
in which Lord Justice Holker opened his
cases, taken in conjunction with his sudden
awakenings and bursts of eloquence when
important
points were reached, that ren-
dered his style of advocacy so telling."
Nearly every great advocate has found
it necessary to make use of the eloquence
of persuasion. Charles Russell is the one
exception. He did not seek to persuade,
he directed the court and jury. Whether
or not he was, as Lord Coleridge said,
" the biggest advocate of the century,"
he was undoubtedly a very great advocate.
Clearness, force, and earnestness were
the basic qualities of his eloquence. It
was said of him that " ordinarily the judge
dominates the jury, the counsel, the public,
— he is the central figure of the piece.
But when Russell is there the judge
isn't in it.
Russell
dominates
every
one."
But no man can dominate a jury in a
doubtful case, and though Russell was
supreme in a good case, he had not that
power possessed in a high degree by
another great advocate — still, happily,
among us — Sir Edward Clarke, who could
not only insinuate doubts into the hearts of
the jury, but could leave his arguments
so clearly in men's minds that he became,
as it were, the thirteenth man on the jury
70
SEVEN
LAMPS
OF
ADVOCACY
when
they retired to consider their verdict. This requires real eloquence.
The moral of the lives of the advocates
seems to be that in the house of eloquence
there are many mansions, and any style
natural to the man who uses it is his right
style, and may succeed. One besetting
sin of many would-be eloquent speakers is
fatal, and that is bombast. The young
advocate who opened a libel case, "My
client, gentlemen, is a cheesemonger ; and
the reputation of a cheesemonger is like
the bloom upon a peach. Touch it, and
it is gone for ever," must have been immune from eloquence. Yet there are
solicitors and clients who still like that
kind of thing, and advocates
it.
who
supply
Nearer to eloquence was the advocate
who, in defence of a woman for child
murder, said in passionate tones :
" Gentlemen, it is impossible that the
prisoner can have committed this crime.
A mother guilty of such conduct to her
own child ! Why, it is repugnant to our
better feelings ! Gentlemen, the beasts
of the field, the birds of the air, suckle
"
young
their
The simile might perhaps have passed
with
the jury had not a dry, unsympathetic voice from the bench interrupted
THE
LAMP
OF
ELOQUENCE
71
with : " Mr. X, if you establish the latter
part of your proposition, your client will
be acquitted to a certainty."
And though eloquence at its highest
is a gift, the art of speaking can be learned
and
personal difficulties overcome. Demosthenes, with his pebbles in his mouth
or running up a hill spouting an oration,
has been an example to us from the schoolroom. Cicero took lessons from Roscius
and ^Esop. Lord Guildford, Lord Campbell, Lord Brougham, and others have
impressed on students the importance of
attending and practising at moots and
debating societies. The mechanics of
eloquence can be as certainly learned by
the student as the mechanics of etching
or engraving, but how far these will make
an artist of him and help to bring real
eloquence to the learner lies in himself.
There is no golden rule of method, but
there is this golden principle to remember
that the message of eloquence is addressed
to the heart rather than the brain. This
is well put by Lord Chesterfield, who was
more human than many will allow, when
he wrote to his son : " Gain the heart, or
you gain nothing ; the eyes and the ears
are the only road to the heart. Merit and
knowledge will not gain hearts, though
they will secure them when gained. Pray
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SEVEN
LAMPS
OF
ADVOCACY
have that truth ever in your mind. Engage
the eyes by your address, air, and motions ;
soothe the ears by the elegancy and harmony of your diction ; the heart will
certainly follow ; and the whole man and
woman will as certainly follow the heart."
Thus is the grammar of the matter set
down by a skilled grammarian, yet it is
but a bundle of dry sticks and kindles no
flame. The high privilege of lighting the
torch at the lamp of eloquence is a gift
of the gods, for orators are born, and not
made.
VI
THE LAMP
OF JUDGMENT
VI
THE
LAMP
OF
JUDGMENT
Judgment inspires a man to translate
good sense into right action. I would not
quarrel with the philosopher who describes
judgment as an instinct, but I would bid
him remember that even an instinct is
acquired by " cunning " rather than luck.
Let no one think that he can attain to
sound judgment without hard work. The
judgment of the advocate must be based
on the maxim, " He that judges without
informing himself to the utmost that he
is capable cannot acquit himself of judging
amiss."
A client is entitled to the independent
judgment of the advocate. Whether his
judgment is right or wrong, it is the duty
of the advocate to place it at the disposal
of his client. In the business of advocacy
judgment is the goods that the advocate is
bound to deliver. Yet he is under constant temptation to please his client by
giving him an inferior article. The duty
of the advocate to give only his best is
75
76
SEVEN
LAMPS
OF
ADVOCACY
wisely insisted upon by Serjeant Ballantine, who relates a personal experience
that all advocates must be ready to face.
" The solicitor instructing me," he
writes, " was vehement in expressing
belief in his client's innocence. I was of a
different opinion. He, acting upon his
belief, desired that certain witnesses
should be called. I, governed by my convictions, absolutely refused to do so, offering at the same time to return my brief.
This, however, was refused, and I was left
to exercise my own responsibility. The
above question frequently arises, and some
counsel have considered themselves bound
to obey the wishes of the solicitor. There
is no doubt that this is the safest course
for the advocate, for, if he does otherwise
and the result is adverse, he is likely
to be much blamed, and the solicitor also
is exposed to disagreeable comments ;
but I hold, and have always acted upon
the opinion, that the client retains counsel's
judgment, which he has no right to yield
to the wishes or opinions of any one else.
He is bound, if required, to return his
brief, but if he acts against his own convictions he sacrifices, I think, his duty as
an advocate."
An advocate of judgment has the power
of gathering up the scattered threads of
THE
LAMP
OF
JUDGMENT
77
facts and weaving them into a pattern
surrounding and emphasising the central
point of the case. In every case there
is one commanding theory, to the proof
of which all the facts must be skilfully
marshalled. An advocate with one point
has infinitely greater chances than an
advocate with twenty points.
Rufus Choate was an advocate of great
judgment, and not only was he enthusiastic and diligent in searching for the
central theory, or 44 hub of his case, as
he called it, but having made up his mind
what it was, he rightly put it forward without delay, believing that it was the " first
strike " that conquered the jury. Parker,
his biographer, tells us that 44 he often
said to me that the first moments were the
great moments for the advocate. Then,
said he, the attention is all on the alert,
the ears are quicker, the mind receptive.
People think they ought to go on gently,
till, somewhere about the middle of their
talk, they will put forth all their power.
But this is a sad mistake. At the beginning the jury are all eager to know what
you are going to say, what the strength
of your case is. They don't go into details
and follow you critically all along : they
try to get hold of your leading notion,
and lump it all up.
At the outset, then,
78
SEVEN
you want
LAMPS
OF
ADVOCACY
to strike into their minds
what
they want — a good, solid, general view of
your case ; and let them think over that
for a good while. 4 If,' said he emphatically, you
4
haven't got hold of them, got
their convictions at least open, in your
first half-hour or hour, you will never get
at them at all.' "
Abraham Lincoln had a genius for seeing
the real point of his case and putting it
straight to the Court. A contemporary
who was asked in later life what was
Lincoln's trick with the jury replied, " He
saw the kernel of every case at the outset,
never lost sight of it, and never let it
escape the jury. That was the only trick
I ever saw him play."
Sir Henry Hawkins held the same view.
He used to say, " Concentration is the art
of argument. If you are diffuse, you will
be cut up in detail." And he was fond of
quoting the teachings of Denman on this
subject : " Remember also to put forward
your best points first, for the weak ones
are very likely to prejudice the good ones
if they take the lead. It would be better
advice to say never bring them forward
at all, because they are useless."
Johnny Williams, who appeared
with
Brougham and Denman for Queen Caroline, was a man of great sagacity, but much
THE
LAMP
OF
JUDGMENT
79
given to strong expletives. He was once
induced by an attorney, against his own
better judgment, to ask a question, the
answer to which convicted his client on a
capital charge. The circuit considered he
was well justified, when the trial was over,
in turning to the attorney and saying with
great emphasis (formal expletives omitted),
" Go home, cut your throat, and when you
meet your client in hell, beg his pardon."
But an apology was also due from
Williams for surrendering his judgment
to that of his attorney.
In nothing does the advocate more
openly exhibit want of judgment than in
prolixity. Modern courts of justice are
blamed by the public, not wholly without
cause, for the length and consequent expense of trials. To poor people this may
mean a denial of justice. No one desires
that the judge should constantly interfere
with counsel in the discharge of their duties,
but it seems to be his duty on occasion to
blow his whistle and point out to the combatants that they are offside.
If every one connected with the trial of
an action were to train and use his judgment and co-operate with the judgments
of his fellow-workers in a policy of antiwaste, a great reproach would be lifted
from our courts of justice.
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SEVEN
LAMPS
OF
ADVOCACY
Prolixity is no new disease. Many wise
judges have sought to eradicate it. In
the time of Charles II. things seem to have
been in a specially bad way, and Lord
Guildford, though he probably went to
dangerous extremes, was well thought of
by the public for his endeavour to speed
up the legal machine.
" In his lordship's conduct of trials he
was very careful of three matters : 1. To
adjust what was properly the question,
and to hold the counsel to that ; for he
that has the worst end of the staff, is very
apt to fling off from the point and go out of
the right way of the cause. 2. To keep
the counsel in order ; for in trials they
have their parts and their times. His
lordship used frequently to inculcate to
counsel the decorum of evidencing practice. 3. To keep down repetition, to
which the counsel, one after another, are
very propense ; and, in speeching to the
jury one and the same matter over and
over again, the waste of time would be so
great that, if the judge gave way to it,
there would scarce be an end ; for most
of the talk was not so much for the causes
as for their own sakes, to get credit in the
country for notable talkers. And his
lordship often told them that their confused harangues disturbed the order of
THE
LAMP
OF
JUDGMENT
81
his thoughts ; and, after the trial was over,
it was very hard for him to resume his
method and direct the jury to comprise
all the material parts of the evidence.
Therefore he was positive not to permit
more than one counsel of a side to speech
it to the jury, by way of summing up the
evidence ; and he permitted that in such
a way as made them weary of it. For, in
divers sorts of trials, he wholly retrenched
it ; and where he observed much stiffness
and zeal of the parties in a cause, then,
after the evidence was over, he would say,
' Come, make your speeches ; ' and then
sat him down : and that looked with a sort
of contempt of their talents, which gave
them a distrust, and discomposed their
extempore so much that, for the most part,
they said, 4 No, we will leave it to your
lordship.' And thus the abuse, by fastidious talk, wore away ; and the practice
before him was so well known, as it became
at length a pure management
of evidence
and argument of law."
The judgment of an advocate may be
called upon at any moment for a sudden
decision that may mean the victory or
defeat of his client. For this reason it is
necessary that he should be always alert.
The contents of his brief must be already
in his mind, and his attention must be fixed
6
82
SEVEN
LAMPS
on what is happening
OF
ADVOCACY
in court, which has
rarely been foreseen in the best-prepared
brief ever delivered to counsel.
It was Russell who turned round to his
junior and said, " What are you doing ? "
" Taking a note," was the answer.
At which Russell burst out in his uncommean
promising way : " What the devil do you
by saying you are taking a note ?
Why don't you watch the case ? "
" Watch the case ! " It is a
rule.
golden
It was the same when he was playing
cards. He would get impatient with a
partner shuffling and handling his cards
in a state of indecision. " Why are you
looking at your cards ? " he asked. " Why
don't you watch the game ? The game is
on the table."
In the same way an advocate who is
always fumbling with his brief when he is
examining a witness cannot follow the
game that is on the table before him.
Sound
judgment is essential to the examination ofwitnesses. How few advocates
know how to examine a witness-in-chief !
Birrell tells us that Sir Frank Lockwood
had very clear views on the subject. " He
believed that the examination of a witnessin-chief, or the direct examination of
witnesses, as it was called in Ireland, was
THE
LAMP
OF
JUDGMENT
83
very much underrated in its significance
and its importance. If they had to
examine a witness, what they had got to do
was to induce him to tell his story in the
most dramatic fashion, without exaggeration ;they had got to get him, not to make
a mere parrot-like repetition of the proof,
but to tell his own story as though he
were telling it for the first time — not as
though it were words learnt by heart ;
but if it were a plaintive story, plaintively
telling it. And they had got to assist him
in the difficult work. They had got to
attract him to the performance of his duty,
but woe be to them if they suggested to
him the terms in which it was to be put !
They must avoid any suspicion of leading
the witness, while all the time they were
doing it. They knew perfectly well the
story he was going to tell ; but they
destroyed absolutely the effect if every
minute they were looking down at the
paper on which his proof was written.
It should appear to be a kind of spontaneous conversation between the counsel
on the one hand and the witnesses on
the other, the witness telling artlessly his
simple tale, and the counsel almost appalled
to hear of the iniquity under which his
client had suffered.
" It was in this way, and in this way
84
SEVEN
LAMPS
OF
ADVOCACY
alone, that they could effectively examine
a witness."
There is probably more waste of time
and irrelevance in the examination of
witnesses-in-chief than in any other procedure of counsel. This is the modern drama
of it.
Counsel
(his eyes glued to his brief) :
" Your name is Mary Ann Snooks."
Witness (annoyed) : " Martha Ann."
Counsel : " Oh, yes, Martha Ann
Snooks ; and you are the wife of Thomas
Snooks, the bookmaker."
Witness (very indignant) : " Nothing of
the sort."
Counsel : "I beg your pardon — my
mistake — bootmaker . ' '
Witness : " And has been this thirty
"
year
Counsel : " And you live at 139 Doncaster Street, Upper Tulse Hill."
Witness : " We did live there ; we've
moved now, sir."
Counsel : " What is your present
address ? "
etc., etc., ad lib.
Consider for a moment, if you will, the
horrid waste of all this irrelevance standing
between the Court and Mrs. Snooks's
version of what she saw of an accident in
High
Street, Kensington,
and
reducing
THE
LAMP
OF
JUDGMENT
85
her to a state of nervous irritation antipathetic to accurate testimony.
How much more business-like was the
method of the eighteenth century ! In a
State trial in the days of Queen Anne the
name of the lady is announced in the oath,
and then counsel approaches her, as Sir
Frank Lock wood might have done : " Pray,
madam, will you be pleased to acquaint
my lord and the jury what you know
concerning the matter, and what passed
between your brother Mr. Colepepper and
Mr. Denew at his first coming to him ? "
Much public time could be saved by
more economical methods of examinationin-chief, and greater efficiency would
ensured.
be
Cross-examination, too, is almost entirely
a matter of judgment. Two golden rules
handed down from the eighteenth century,
and maybe from beyond, are still unlearned
lessons to each succeeding generation of
advocates :
1. Never ask a question without having
a good reason to assign for asking it.
2. Never hazard a critical question without having good ground to believe that the
answer will be in your favour.
Serjeant Ballantine has some just observations on the art of cross-examination
and the use and abuse of it.
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SEVEN
LAMPS
OF
ADVOCACY
" The records of justice," he says, " from
all time show that truth cannot, in a
great number of cases tried, be reasonably
expected. Even when witnesses are honest,
and have no intention to deceive, there is a
natural tendency to exaggerate the facts
favourable to the cause for which they
are appearing, and to ignore the opposite
circumstances ; and the only means known
to English law by which testimony can
be sifted is cross-examination. By this
agent, if skilfully used, falsehood ought to
be exposed, and exaggerated statements
reduced to their true dimensions. An
unskilful use of it, on the contrary, has a
tendency to uphold rather than destroy.
If the principles upon which cross-examination ought to be founded are not understood and acted upon, it is worse than
useless, and it becomes an instrument
against its employer. The reckless asking
of a number of questions on the chance of
getting at something is too often a plan
adopted by unskilful advocates, and noise
is mistaken for energy. Mr. Baron Alderson
once remarked to a counsel of this type,
" Mr.
, you seem to think that the
art of cross-examination is to examine
crossly."
How few advocates have the capacity to
let well alone ! They must repeat and
THE
LAMP
OF
JUDGMENT
87
emphasise, and emphasise and repeat. In
a case tried before Sir Henry Hawkins, a
junior, not content with his own witness's
answer, continues :
Junior {emphatically) : " And you are
quite sure of this ? "
Witness: 44 Yes."
Junior : " Quite ? "
Witness : " Quite ! "
Junior : " You have no doubt about
it ? "
Witness : " Well, I haven't much
doubt, because I asked my wife."
Sir Henry {pouncing on his prey) :
" You asked your wife in order to be sure
in your own mind ? "
Witness : " Quite so, my lord."
Sir Henry : " Then you had some
doubt before ? "
Witness
: " Well, I may have had, my
lord."
It is part of the advocate's role to make
the jury believe in his infallibility, and
every question he asks that gives the witness an opportunity to score off him and
belittle him in their eyes is an error of
judgment. Serjeant Buzfuz, who conducted his case with fine judgment, was
guilty of a grave error in his examination
of Sam Weller. Brow-beating is always a
dangerous policy ; it antagonises the jury
88
SEVEN
LAMPS
OF
ADVOCACY
and leads to reprisals. There is an old
story of the counsel in an assault case who
asked the witness at what distance from
the parties he was at the time of the assault.
Not content with the reply of " A few
feet," but pressing for greater accuracy,
he was answered by the witness : 44 Just
four feet five and a half inches."
" How do you come to be so very exact,
fellow ? " asked counsel sternly.
" Because I expected some fool or other
would ask me, so I measured it."
A good story, too, is told against Lord
Coleridge in Mr. O'Brien's Life of Lord
Russell. He appeared in a libel action
for a young lady who had been expelled
from a college. His case was that the
breaches of discipline were trivial, and he
pressed Mrs. Kennedy, the mistress of
novices, asking what his young client had
done. Mrs. Kennedy said, as an example,
that she had eaten strawberries.
" Eaten strawberries ! " exclaimed Coleridge. What
"
harm was there in that ? "
" It was forbidden, sir," replied Mrs.
Kennedy simply.
Coleridge should have accepted her
answer, but he retorted with a contemptuous question, not foreseeing the reprisal,
" But, Mrs. Kennedy, what trouble was
likely to come from eating strawberries ? "
THE
LAMP
OF
JUDGMENT
89
" Well, sir," replied Mrs. Kennedy, " you
might ask what trouble was likely to come
from eating an apple, yet we know what
trouble did come from it."
Coleridge's cross-examination dissolved
in laughter, in which, of course, he joined
good-naturedly.
The art of re-examination, which is a
task often as futile as the endeavour to
set Humpty Dumpty on the wall again,
can be learned only by the experience of
watching the game on the table and playing
any few remaining cards in your hand
with rapid judgment.
A wise student will take Lord Halsbury's
advice and go to the Old Bailey to study
cross-examination ; and, if Lockwood's
view still holds good, he might attend the
Chancery Courts to learn how not to
re-examine. Birrell tells us that " once,
in the Court of Chancery, a witness was
asked, in cross-examination by an eminent
Chancery leader, whether it was true that
he had been convicted of perjury. The
witness owned the soft impeachment, and
the cross-examining counsel very promptly
sat down. Then it became the duty of an
equally eminent
Chancery
Q.C. to re-
examineYes,'
.'
said he, 6 it is true you
have been convicted of perjury. But tell
me, have you not on many other occasions
90
SEVEN
been
accused
LAMPS
OF
ADVOCACY
of perjury, and
been
ac-
quitted '? "
re-examination intending to rehabilitate the character of a witness is apt
to make matters worse.
Most
These stories of actual happenings,
trivial in themselves, teach us the necessity
of judgment in advocacy. And I pray the
young advocate not to rejoice too merrily
over the errors of judgment of his seniors
or lament too grievously about his own.
Bear in mind that by acknowledged error
we may learn wisdom, and that the only
illuminant for the lamp of judgment is the
oil of experience.
VII
THE LAMP
FELLOWSHIP
VII
THE
LAMP
OF
FELLOWSHIP
An advocate lacking in fellowship, careless
of the sacred traditions of brotherhood
which have kept the lamp of fellowship
burning brightly for the English Bar
through many centuries, a man who joins
the Bar merely as a trade or business, and
does not understand that it is also a professional community with public ideals,
misses the heart of the thing, and he and
his clients will suffer accordingly.
Fitzjames Stephen wisely said of the
English Bar that it is " exactly like a
great public school, the boys of which
have grown older, and have exchanged
boyish for manly objects. There is just
the same rough familiarity, the general
ardour of character, the same kind of
unwritten code of morals and manners, the
same kind of public opinion expressed in
exactly the same blunt, unmistakable
manner."
The very title of Inns of Court is
redolent of hospitality,93 fellowship, and even
94
SEVEN
LAMPS
OF
ADVOCACY
conviviality. How many glorious things
have their beginnings at an inn ! How
pleasant it would be to investigate with
the antiquarians the earliest origins of our
Inns of Court ! But to come to comparatively modern days, Sir John Fortescue,
who was Chief Justice of the King's Bench
in the time of Henry VI., gives us a
pleasant picture of their traditions of
fellowship. These Inns of Court, or hostels,
he says, anciently received the sons of
noble men and the better sort of gentlemen, " who did there not only study the
laws to serve the courts of justice and
profit their country, but did further learn
to dance, to sing, to play on instruments
on the ferial days and to study divinity
on the festival, using such exercises as
they did who were brought up in the
King's Court." There were Inns of Chancery, too, where the younger students
learned the first elements of law before
they were taken into the greater hostels,
which were called Inns of Court. The
expenses of the student were no less than
twenty marks a year in Fortescue's day,
and if he was attended by his servant,
as most were, that was an added charge,
so that only the sons of gentlemen could
afford so expensive an education.
At this time a young fellow would come
THE
from
LAMP
OF
FELLOWSHIP
95
the university, or perhaps straight
from the grammar-school, and would learn
the first elements of law in one of the ten
minor Inns of Chancery, and would then
apply for admission to one of the four
houses or Inns of Court : Inner or Middle
Temple, Gray's Inn or Lincoln's Inn.
There they continued for the space of
seven years, attending readings, moots —
where cases were put and discussed — and
" boltings," as the practice arguments
were called, " whereby," as Fortescue tells
us, " growing ripe in the knowledge of the
laws, and approved withal to be of honest
conversation, they are either by the
general consent of the benchers or readers
(being of the most ancient, grave, and
judicial men of every Inn of Court), or by
the special privilege of the present reader
there, selected and called to the degree
of utter (outer) barristers, and so enabled
to be common counsellers and to practise
the law both in their chambers and at the
bars."
The whole
social scheme
of education
and control in the exercise of professional
rights and advancement was most carefully thought out. An utter barrister of
not less than ten or twelve years' standing
and " of good profit in study " was chosen
as reader to educate the students. At
96
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OF
ADVOCACY
about fifteen years' standing he became a
bencher, after which he might be appointed aserjeant, and go away to Serjeants' Inn, that important society 44 where
none but Serjeants and judges do converse,"
and from which alone could judges be
chosen.
It was for this reason that the judges
always addressed a serjeant as " Brother."
I can well remember as a boy feeling a
certain glow of satisfaction at hearing the
judges in the Tichborne trial calling my
father " Brother Parry," and it seems a
pity that this fraternal greeting, this
courteous link of fellowship between Bench
and Bar, necessarily disappeared with
the abolition of Serjeant's Inn. Yet,
though the talisman is no longer spoken,
the spirit of brotherhood will always be
with us.
In the old days education in the law
was undertaken very seriously, but in a
fraternal spirit. The reader would propound a case, the utter barristers would
declare their opinion, the reader would
confute the objections laid against him,
and the students would eagerly note the
learned points of the seniors. These readings took four or five hours daily, and were
held in the halls. The moots and the
boltings took place after supper, and at
THE
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97
other times among the students under the
leadership of a barrister.
But the whole term was not taken up
with the dry study of the law. There were
feastings, grand nights, and, greatest of
all, the Christmas Saturnalia, at one of
which, after a costly dinner, a pack of
hounds was brought into the hall, a fox
and a cat were let loose, and a mad hunt
took place. Isaac D' Israeli gives an
excellent account of these wild doings,
taken from a rare tract supposed to have
been written in 1594. 64 Supper ended,"
he writes, " the constable-marshal presented himself, with drums playing, mounted
on a stage borne by four men, and carried
round ; at length he cries out, 4 A lord,
a lord,' &c, and then calls his mock court
every one by name.
" 4 Sir Francis
hurt.
Flatterer, of
Fowls -
44 ' Sir Randall Rackabite, of Rascalhall, in the county of Rake- hell.
" 4 Sir Morgan Mumchance, of Much
Monkery, in the county of Mad Mopery.
44 ' Sir Bartholomew Bald-breech, of
Buttock-bury, in the county of Breakneck.'
44 They had also their mock arraignments. The king's -Serjeant, after dinner
or supper, 4 oratour-like,' complained that
7
98
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the constable-marshal had suffered great
disorders to prevail ; the complaint was
answered by the common-serjeant, who
was to show his talent at defending the
cause. The king's-serjeant replies ; they
rejoin, &c. : till one at length is committed
to the Tower, for beingfound most deficient.
If any offender contrived to escape from
the lieutenant of the Tower into the buttery, and brought into the hall a manchet
(or small loaf) upon the point of a knife,
he was pardoned ; for the buttery in this
jovial season was considered as a sanctuary.
Then began the revels. Blount derives this
term from the French reveiller, to awake
from sleep. These were sports of dancing,
masking comedies, &c. (for some were
called solemn revels), used in great houses,
and were so denominated because they
were performed by night ; and these
various pastimes were regulated by a
master of the revels.
" Amidst 6 the grand Christmass ' a
personage of no small importance was
' the Lord of Misrule.' His lordship was
abroad early in the morning, and if he
lacked any of his officers, he entered their
chambers to drag forth the loiterers ; but
after breakfast his lordship's power ended,
and it was in suspense till night, when his
personal presence was paramount, or, as
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99
Dugdale expresses it, ' and then his power
is most potent.'
" Such were then the pastimes of the
whole learned bench ; and when once it
happened that the under-barristers did
not dance on Candlemas Day, according
to the ancient order of the society, when
the judges were present, the whole bar
was offended, and at Lincoln's Inn were
by decimation put out of commons, for
example-sake ; and should the same
omission be repeated, they were to be
fined or disbarred ; for these dancings
were
thought necessary, ' as much conducing to the making of gentlemen more
fit for their books at other times.' "
The details of the alliteration with which
Sir Francis Flatterer and others are called
into court have always interested me
deeply, as on the Northern Circuit, when
the crier at Grand Court calls in the absent
ones, he has to do it in curious and measured phrases of alliterative abuse. When
Fitzjames Stephen was made crier on
account of his stentorian voice, his delicate
mind revolted against the coarseness of his
duties, and he sought to have the Circuit
Court and its ancient, outspoken manners
abolished, but fortunately he did not
succeed.
For
though
some
of this ancientry is
100
SEVEN
LAMPS
better honoured
OF
ADVOCACY
in the breach than
the
observance, yet even the buffoonery, as
Stephen called it, of Grand Court has its
value as a link with the past.
It is an excellent thing for the profession
that in the same way as the lessons of
advocacy in the past were learned by the
young students from their elders, who sat
at meat with them and shared their lives
in intimate and homely fashion, so to-day
we enter a common Inn, dine at a common
table, join a common mess upon circuit,
all of which is evidence of the continuance of that right spirit of fellowship which,
to my mind, is an essential of advocacy.
The fellowship of the Temple springs
from its long traditions of brotherhood
among the Templars. To turn out of the
Strand into its quiet courts brings over
your brooding spirit something of that
sacred melancholy pleasure which one
feels on entering the old school or dining
once again in the college hall. But you
are no longer actor, art and part, in the
school and college life. Here in the Temple,
though others are judges and benchers
and fashionable leaders, you can still
wander in shabby honesty in the gardens,
pull down some of the old volumes in the
library, and dine below the salt with your
fellow-ancients.
THE
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OF
FELLOWSHIP
101
Thackeray has a true insight into the
pleasures of memory that the Temple
possesses for those who have lived there,
and pictures, as he alone can, its historic
charm.
" Nevertheless," he writes, " those venerable Inns which have the Lamb and
Flag and the Winged Horse for their ensigns
have attractions for persons who inhabit
them, and a share of rough comforts and
freedom which men always remember
with pleasure. I don't know whether
the student of law permits himself the
refreshment of enthusiasm, or indulges in
poetical reminiscences as he passes by
historical chambers and says, 4 Yonder
Eldon lived — upon this site Coke mused
upon Lyttelton — here Chitty toiled — here
Barnwell and Alderson joined in their
famous labours — here Byles composed his
great work upon bills, and Smith compiled
his immortal leading cases — here Gustavus
still toils, with Solomon to aid him : 5
but the man of letters can't but love the
place which has been inhabited by so
many of his brethren, or peopled by their
creations, as real to us at this day as the
authors whose children they were — and
Sir Roger de Coverley, walking in the
Temple Garden and discoursing with Mr.
Spectator about the beauties in hoops and
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OF
ADVOCACY
patches who are sauntering over the grass,
is just as lovely a figure to me as old
Samuel Johnson rolling through the fog
with the Scotch gentleman at his heels
on their way to Dr. Goldsmith's chambers
in Brick Court ; or Harry Fielding, with
inked ruffles and a wet towel round his
head, dashing off articles at midnight
for the Covent Garden Journal while the
printer's boy is asleep in the passage."
The Temple is full of ghosts — honest
ghosts with whom it is a privilege to claim
fellowship.
There are some who speak of the Bar
sneeringly as a Trade Union — which it
certainly is, and to my thinking one of
the oldest and best unions. And if advocacy could be honestly described as a
trade, then the phrase trade union might
be accepted without demurrer. For the
basic quality of a trade union, that which
has made these institutions thrive against
opposition, is the spirit of fellowship and unselfishness which is the ideal of its members.
We have seen how of old the senior
members
of the Bar trained up the juniors
in the mystery of their craft, and throughout the practice of the profession it has
always been a point of honour for the
elders to assist the beginners in those
difficult days of apprenticeship.
THE
LAMP
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FELLOWSHIP
103
What could be more delightful and
encouraging to a youngster than to be
received by his genial, handsome leader
in the presence of an admiring attorney
after the fashion that Montagu Williams
tells us of his first meeting with Serjeant
Shee ? " 1 shall never forget," he writes,
" my consultation with dear old Serjeant
Shee. I knew very little about pleadings,
and matters of that kind, and so the work
naturally made me feel somewhat nervous.
On going upstairs to the consulting-room
to see Serjeant Shee, whom I already knew
slightly, I had my briefs stuck under my
arm, somewhat ostentatiously, I am afraid.
The old Serjeant patted me on the shoulder
and said, 6 Lots of briefs flowing in, my
boy ; delighted to see it.'
" When we had taken our seats, and the
consultation had begun, he said, turning
to the solicitor who instructed us, 4 Winning case — pleadings all wrong. That
young dog over there smelt it out long ago,
as a terrier would a rat, I can see — eh,
Montagu Williams ? You've found it out ;
I can see it by your face.'
" Heaven knows I was as innocent of
finding anything out as the man in
the moon. I sniggered feebly ; and
then the Serjeant proceeded to put into
my mouth the vital blots in the case of
104
SEVEN
LAMPS
our adversary, which
covered.
OF
ADVOCACY
he alone had dis-
" That was the way leaders treated their
juniors then. I must leave my successors
at the Bar to decide whether or not things
are the same now."
With equal kindness that great man
and honest advocate, Abraham Lincoln,
stretched out the hand of welcome and
encouragement to the younger men who
came along.
James Haines tells us the story of his
first brief, The People v. Gideon Hawley.
" There
were," he says, " thirty-two indictments against my client for obstructing a public road, and as the authorities
were inclined to make an example, the
case was somewhat serious. I retained
Mr. L. to conduct the defence, and after
we had completed our preparations he
said, ' Of course, you will make the opening
speech.' I was surprised, for I had supposed that he would want to assume full
control, and I said as much, adding that
I would prefer him to take the lead. ' No,'
he answered, and then, laying a hand on
my shoulder, he continued : 1 1 want you
to open the case, and when you are doing
it, talk to the jury as though your client's
fate depends on every word you utter.
Forget that you have any one to fall back
THE
LAMP
OF
FELLOWSHIP
105
upon, and you will do justice to yourself
and your client.' I have never forgotten
the kind, gentle, and tactful manner in
which he spoke those words," Mr. Haines
continued, " and that is a fair sample of
the way he treated the younger members
of the Bar."
No man ever attains a position at the
Bar in which he can afford to despise the
opinion of his fellow-men. The eulogies
of public journals, even the praise and
patronage of attorneys, are of no worth
compared with the respect of the Bar.
As a French
advocate
wrote : "A
solid
reputation proceeds only from the Court."
Charles Russell, who stood on a somewhat lonely eminence at the head of his
profession, and dealt with the affairs of
his fellows in a very rough-handed and
independent manner, was at heart very
jealous of the good opinion of the Bar.
He had, during the course of a trial,
cross-examined a lady with great severity,
and afterwards received an anonymous
letter of a very abusive character, in which
he was charged with having been guilty
of conduct in his cross-examination " which
no gentleman should pursue towards any
woman." He thereupon sat down and
wrote a letter to the counsel on the other
side, in which he said, " I should be sorry
106
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OF
ADVOCACY
to think this was true, but I am not the best
judge of my own conduct," and asked for
his learned friend's opinion on the charge.
The interesting point of the correspondence is that Russell felt that it might
possibly be true. It reminds one of the
celebrated line in a lively mid-Victorian
comedy, where the servant -girl said,
" Really, ma'am, I'm that flustered that
I don't know whether I am standing on
my head or my heels." To which Mrs.
John Wood used to reply with stern emphasis, "No decent woman ought to have
the slightest doubt on a subject of that
kind."
Russell's learned friend cleverly evaded
responsibility by telling him that the
character of a gentleman was one " we all
know you eminently possess," with which
certificate of character the great man was
soothed and satisfied.
With the decay of circuits and the
passing of old customs and the silence of
ancient convivialities, some of the spirit
of fellowship may be lost. But we must
remember that even the good old days
were not without evidence of professional
malice and uncharitableness. As far back
as the reign of Francois I. it was a rule
of the French Bar that " advocates must
not use contentious words or exclama-
THE
LAMP
OF
FELLOWSHIP
107
tions the one toward the other ; or talk
several at the same time, or interrupt each
other."
These words might still be engraved in letters of gold on the walls of
our own law-courts, for on occasion the
lamp of fellowship burns so low that such
things occur. Still, at the English Bar
we may claim that we set a good example
to other bodies of learned men by our
real attachment to the precepts and
practice of fellowship, and may, without
hypocrisy, commend the rest of mankind
to follow in our footsteps,
And do as adversaries do in law,
Strive mightily, but eat and drink as friends.
For it is by keeping the lamp of fellowship burning that we encourage each other
to walk in the light of the seven lamps of
advocacy.
INDEX
Alderson, Baron, 86
Atlay, J. B., 67
Bacon, Francis, 65
Ballantine, Serjeant, 76, 85
Benjamin, J. P., 26
Berryer, M., 18
Bethell, Richard, 23, 65, 66
Billings, Josh, 56
Birrell, A., 82, 89
Blackstone, Sir W., 13
Boswell, James, 16, 17, 18
Bowen, Lord Justice, 54
Bramwell, Lord, 53
Brougham, Lord, 18, 42, 63,
68, 71, 78
Campbell, Lord Chief Justice,
39, 71
Capitularies of Charlemagne,
14
Chesterfield, Lord, 71
Choate, Rufus, 50, 51, 61, 77
Cicero, 50
Clarke, Sir Edward, 69
Cobbett, William, 68
Cockburn, Lord Chief Justice,
18
Coleridge, Lord Chief Justice,
53, 69, 88, 89
Copley, Serjeant (Lord Lyndhurst), 66
Curran, J. P., 52
D'Aguesseau, 14
Davy, Serjeant, 52
Denman, Lord, 67, 78
D' Israeli, Isaac, 97
Dugdale, Sir William, 44
Eldon, Lord. See Scott,
John
Erskine, Lord, 11, 30, 31, 50,
61, 63
Faculty of Advocates, 13
Fielding, Henry, 61, 102
Finch, Heneage, 42, 43
Fortescue, Sir John, 94
Francois I, 106
Garrick, 11, 61, 62
Grant, James, 66
Guildford, Lord. See North,
Francis.
Gully, W. C. (Lord Selby), 45,
53, 66
Haines, James, 104, 105
Hale, Lord Chief Justice, 25
Halsbury, Lord, 89
Hatton, Charles, 23
Hawkins, Sir Henry, 11, 78,
87
Herschell, Lord, 45
Holker, Sir John, 53, 68
Hollams, Sir John, 26
Horn, Andrew, 14
Irving, Sir Henry, 11
James, Lord Justice, 26
Jeffreys, Baron, 23
Johnson, Doctor, 16, 17, 18,
102
Jones, Tom, 28
Karslake, Sir John, 40
109 Kay, Lord Justice, 27
INDEX
110
Kean, 11
Kelly, Chief Baron, 57
Kennedy, Mrs., 88, 89
Kenyon, Lord Chief Justice,
45, 50
Lamb, Charles, 37, 61
Leach, Sir John, 65
Lincoln, Abraham, 19, 38, 61,
78, 104
Lockwood, Sir Frank, 82, 85
Mansfield,
Lord Chief Justice,
51
Maynard, Serjeant, 42
Mirrour of Justices, 14
North, Francis, 24, 42, 80
North, Roger, 24, 25, 26, 42,
44
O'Brien, R. B., 40, 88
O'Connell, Daniel, 41
Paine, Thomas, 30
Palmer, Sir Roundell (Lord
Selborne), 27
Parry, Serjeant, 68, 96
Quintilian, 55
Ribton, 56
Robinson, Serjeant, 28
Roche, Sir Boyle, 52
Russell, Charles (Lord
Russell of Killowen), 38,
40, 41, 45, 69, 82, 105, 106
Scarlett, James (Lord
Abinger), 61, 67, 68
Scott, John (Lord Eldon),
44, 46
Seward, William Henry, 32
Shee, Serjeant, 68, 103
Stephen,
FitzJames, Mr.
Justice, 93, 99
Talbot, Charles, Lord Chancel or, 45
Thackeray, W. M., 101
Westbury, Lord. See
Bethell
Wightman, Mr. Justice, 56
Wilde, Mr. Justice, 50
Williams, Johnny, 78, 79
Williams, Joshua, 19
WTilliams, Montagu, 68, 103
Wood, Mrs. John, 106
Wren, Sir Christopher, 43
Wyclif, John, 13
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